Ex won’t sign passport application for your child? Here’s what to do …
In most circumstances, it is reasonable for one parent to travel internationally with their child, particularly if they have family or cultural ties to the destination country.
If there are no Parenting Orders in place, you don’t need the other parent’s consent to travel overseas with your child. However, in the interests of effective co-parenting, it’s generally best to discuss your travel plans with the other parent to avoid bad vibes, retaliation, or Recovery Orders for the urgent return of the child.
Where Parenting Orders exist that do not specifically address travel, you must first get the other parent’s consent if you wish to travel overseas with your child. It’s important to understand the legalities of taking your child on holiday if you are separated before you book a ticket or pay for anything because you could end up out of pocket if you need to cancel.
Ex won’t sign passport application for our child. What can I do?
Applying for a child's passport when you are separated
If your child doesn’t have a current passport, generally the non-travelling parent will also need to sign the passport application.
If there are Orders in place granting Sole Parenting Responsibility to one parent, including the authorisation of travel documents, then it may only require the signature of the person with Sole Parenting rights.
It might otherwise be possible to have a passport issued with only one parent’s consent, but fair warning, it’s a long and challenging process.
Here’s what to do if your ex won’t sign the passport application for your child.
First steps if father won't sign the passport
Sometimes the other parent has legitimate concerns about child abduction and refuses to sign, but often it is more of a control issue.
In these cases, try and talk with your ex to understand why they are refusing to sign your child’s passport application. They may have specific conditions they need addressed before consenting. Meeting their need to have some input into the travel arrangements, without overly compromising your plans, may turn out to be the fastest and most straightforward way to make progress.
It can help to have these conversations in a facilitated mediation environment. If you choose this path, it is best to engage a mediator who is also a Family Dispute Resolution Practitioner (FDRP). I’ll explain why later.
If you have exhausted all the cordial approaches, and the other parent still refuses to give written consent for the passport application, you have two options.
OPTION 1: Apply to Department of Foreign Affairs and Trade with a B-9 Form
Ex won’t sign passport application for your child? Here is the first option …
You can make a written request to the Approved Senior Officer of the Department of Foreign Affairs and Trade to consider approving the child’s passport due to ‘special circumstances,’ by submitting a B-9 Form.
In this form, you need to state if:
- You have tried to contact the other parent
- If the child is subject to any court orders
- Give details of child support arrangements
- Outline any contact between your child and the other parent
You must also provide further information and attach evidence as defined in subsection 11(2) of the Australian Passports Act 2005 and section 10 of the Australian Passports Determination 2015.
Special circumstances can include, but are not limited to:
- Inability to contact a non-consenting parent for a reasonable period
- Existence of a Family Violence Order against the non-consenting parent
- Child is the subject of a Child Welfare Order
Accompany your application with the following:
- A copy of the letter sent to the other parent requesting their written consent for the child’s passport application
- A certified copy of the child’s Full Birth Certificate
- A copy of the travel itinerary and plane tickets if you have already booked travel
- A certified copy of the sealed Court Orders (if applicable)
Reviewing and chance of success
Chances of success are slim. Even when special circumstances are considered, there is no guarantee that an application will be approved.
The delegate assessing the application can decide to:
- Issue a passport;
- Not issue a passport as special circumstances do not exist
- Refuse to exercise their discretion because the matter should be dealt with by a court
Of these possible outcomes, only one – a decision to refuse to issue a passport because special circumstances do not exist – is a reviewable decision. If a passport isn’t granted, the application fee is generally not refunded.
Booking your travel before making the application to DFAT can be risky. A child passport application without full consent take longer to process (generally six to eight weeks), and there is no guarantee that it will be approved.
And, for more sobering news, usually, unless there are extreme circumstances like the death of your ex or they are missing, presumed dead, not contactable or medically incapable of providing consent, it is unlikely that your application will be successful.
OPTION 2: Apply to the Family Court with a Section 60i Certificate
Ex won’t sign passport application for your child? Here is the next option …
You can apply to the Family Court for an order granting permission for the child to obtain a passport without the signature of the other parent.
Most cases will require you to attempt mediation before making an application to the Court. And, you will need to provide the Court with a Section 60i Certificate issued by the mediator to prove that you have attempted to resolve your issue before asking for the Court’s assistance. This certificate can only be issued by an FDRP, and that is why I recommend choosing an FDRP over a general mediator when trying to resolve parenting matters.
Your application will include an Affidavit, stating all the relevant facts to support your case and a Minute of Orders asking the Court to grant an Order allowing just one parent to apply for, and be issued with, a passport for the child.
The court process can be arduous and stressful. You do not want to risk foiling your chances with administrative or procedural errors. While it may be expensive, it’s advisable to get legal advice and assistance to draft your Initiating Application, Minute of Orders and to prepare and settle your affidavit.
Reviewing and chance of success
In reviewing your application, the Court’s most important consideration is what is in your child’s best interests.
Factors the Court may explore when deciding if your proposed travel should be allowed might be:
- The length of your stay outside the country
- The effects on your children not being able to spend time with the parent in Australia
- Any special circumstances behind the request to travel ie to receive specialised medical treatment
- Any threats that may impact the children’s welfare in the proposed overseas environment, particularly where Australian Government travel warnings exist ties.
- How satisfied the Court is that you will honour your promise to return to Australia (you should support your case with return airline tickets and itinerary if you have them)
- The strength (or otherwise) of enduring ties between the departing parent and Australia, such as business interests, owning property, or family and close friends in the country
- The strength of any motives a parent may have not to return, including demonstrated conflict between the parents, particularly over child-related issues
- Any reasons the departing parent may have to divert their travels or remain abroad, including such things as the existence of property ownership, business interests, and family and other personal
You stand a reasonable chance of success if you can satisfy the Court that your travel plans are genuine.
Security bonds and taking children overseas
In some circumstances, the Court may consider it appropriate to set conditions or require financial security to ensure the child comes back to Australia.
The form a security bond takes will vary from case to case. It could be a monetary bond paid to, and held in trust by an agreed third party, or it may require the travelling parent to sign over an asset as security.
If you travel overseas and fail to return your children to Australia, the security may be released to the non-travelling parent enabling them to apply the funds towards bringing the child back to Australia and recovering them into their care.
And if you do manage to get him to sign but don’t know who should hold your child’s passport, read this: Who should have our child’s passports when we separate.
The information in this article is general in nature and should not be considered as legal advice. You should seek the advice of a registered professional who will be able to appropriately assess your specific circumstances before offering their expert opinion.